JUDGMENT
1. This is a second appeal by the plaintiff in a suit for recovery of money.
2. One Thakur Dass Khim Raj of Beewar filed a suit for recovery of money against Tejmal Shankerlal in the Court of District Judge Jodhpur which was compromised by an agreement by the defendants in that suit to pay Rs. 5800. Tejmal Shankerlal borrowed Rs. 2000 from the plaintiff as a part of the amount to be paid to Thakurdass Khimraj. It was alleged that Daulat Bam and Baijnath respondents by an agreement Ex. P. 1 dated Migsar vad 12 Section 1998 agreed to pay this amount to the plaintiff. The plaintiff claimed Rs. 2000 principal and Rs. 680 by way of interest thereon.
3. The respondents admitted having executed the agreement but, it was alleged that according to the terms agreed upon, the amount was realisable from the proceeds of the decree held by the respondents against Shah Daudasa and Mb. Chandrabhaga under execution in the Court of the District Judge Jodhpur (Execution case NO. 7 of 1940-41) and further that even out of the realisations only one fifth of the amount was to be paid to the plaintiff. It was further pleaded that no amount had been received in the decree after the agreement and in any case, they were not personally liable.
4. The trial Court passed a decree in favour of the plaintiff holding the defendants personally liable to repay the sum claimed.
5. On appeal, the learned District Judge was of opinion that the plaintiff could only claim a fifth portion of the actual realisations. According to the evidence, the total amount realised in the decree against Daudass was Rs. 2754/3/- and he passed a decree for one fifth sum thereof, that is, RS. 550/13/- He dismissed the claims for the remaining amount on the ground that no cause of action had arisen for the recovery of the balance.
6. The plaintiff has come up in appeal and the only point in dispute is the interpretation to be placed on the contents of the agreement EX. p-1 a free translation of the relevant portion is as under:
“Greetings to Nathmal by Daulat Bam Baljnath whereas you have advanced Rs. 2,000 to Tejmal Shankerlal and the latter wish that the amount be repaid to you through us to which we also agree. We have a decree against Daudaas and Mt. Chandrabhaga which is under execution in the Court of District Judge Jodhpur–Execution case 7 of 1940-41 and out of the realizations as made from time to time, we shall pay one-filth portion thereof and clear your debt with interest at -/7/9 per cent per mensem.”
7. It was urged that by the agreement between the parties, the respondents had unconditionally undertaken to pay the amount advanced by the appellant to Tejmal Shankerlal and the stipulation to pay out of the proceeds of the decree was only a mode of payment which did not relieve the respondents from their personal liabilities. It was argued that it was conceivable that the respondents may by their own neglect allow the said decree to be barred by limitation or certain circum-stances may intervene, e. g., insolvency of the judgment-debtors which may make the decree unrealisable and it could not be contemplated that the plaintiff in such cases would lose his money.
8. It was further argued that in the case of a contract to deliver goods as and when supplied by the Mills their Lordships of the Privy Council construed the words as regulating the manner of performance only and have not held to mean if and when and the promise to fulfil the contract was held to be not contingent on the supply of goods by the Mills, Hurnandrai v. Prag Das, A. I. R. (10) 1923 P. C. 54 : (47 Bom. 344).
9. It is a well known principle of law that each document is to be construed by a reference to language in the said document and it is unsafe to rely on the construction made of a different document executed under different circumstances although some of the words in the two documents may be the same.
10. Reference may be made to Mathura Singh v. Palakdhari Bai, A. I. R. (27) 1940 pat. 512: (187 I. C. 484) and Amar Krishna v. Nazir Hasan, A. I. R, (26) 1933 oudh. 257 : (14 Luck. 723).
11. In the authority relied upon, the goods agreed to be sold were elaborately described and quantities and times for deliveries by instalments were fixed and their Lordships held with reference to the circumstances of that case that the aforesaid words did not purport to nullify the agreement in case of non-delivery by the mills.
12. In the present case, the language of the document shows firstly, that the original debtors (Tejmal Shankerlal) only wanted the debt to be paid through Daulatram Baijnath, the underlying idea being that the promisors Daulat Ram Baijnath were not to be made personally liable secondly, the entire realisations in the decree were also not to be paid over to the plaintiff bat only a fifth portion was to be paid to him while the remaining four-fifths were to remain at the disposal of the defendants. Much light is thrown by a contemporaneous agreement of the same date EX. D. 1 obtained by the plaintiff from Tejmal Shankarlal in which the latter agreed to hold themselves personally liable to pay any amount which may remain unpaid by the respondents in the manner agreed upon by them in their agreement EX. P. 1.
13. It was suggested by learned advocate for respondents that the decree against Daudass & Mt. Chandrabhaga was originally in favour of Tejmal Shankarlal and later assigned to Daulatram Baijnath and the assignment was only a cloak to save it from other creditors and therefore the mode of repayment prescribed by the-agreement EX. P. 1 really placed the liabilities on Tejmal Shankerlal. While it appears that the decree was originally in favour of Tejmal Shankerlal and later assigned to Daulatram Baijnath, it is not necessary to go into this explanation since the two documents, EX P. 1 & Ex. D. 1 executed at one and the same time make it quite clear that the respondents Daulat Ram Baijnath were not expected to be personally responsible and that responsibility was shouldered by Tejmal Shankerlal.
14. In our opinion, the agreement Ex. p. 1 though it purports to make Daulatram Baijnath liable to repay the amount of RS. 2000 and interest thereon advanced to Tejmal Shankarlal by the plaintiff, yet the liability can only be enforced in the manner agreed to between the parties viz., by payment of one fifth of realisations in the decree.
15. It was contended on behalf of the respondents that even the liability for the amount would only arise on realisations of any Bums in the decree. We are unable to accede to that contention. The liability which the respondents under took is for the entire amount but only its mode of discharge is to be done in a particular manner, While therefore the defendants cannot be held to be personally liable, the plaintiff is entitled to a decree for the amount sued realisable out of the proceeds of the decree held by the defendants againat Daudass and Mt. Chandra bhaga..
16. It was urged by the respondents that they should not be saddled with costs and, in any case, the plaintiff is not entitled be interest pendentelite and until realisation of the decree, as none was allowed by the trial Court and the plaintiff did not appeal against that decree.
17. As to costs the defendants had denied that any cause of action had accrued to the plaintiff and further denied having received any sum in realisation of the decree against Daudass and plaintiff had to make efforts in order to prove the realisations which were found to be Rs. 2754/3/-and there is no reason why the plaintiff should not get costs in all the Courts. As to interest the plaintiff was allowed by the trial Court to realise the entire amount irrespective of whether the defendants could or could not realise their decree against Daudass and naturally were not keen on claiming interest as they could hope to get their decree satisfied early. According to the interpretation of the document as aforesaid the realisation of the amount decreed will be delayed. There is no reason to deprive the plaintiff of interest which is stipulated in the contract.
18. The appeal is therefore accepted the decree of the lower Court is modified and the plaintiff’s entire claim is decreed against the defendants subject to the condition that the realisation of the decree will be made according to the agreement i. e., one-fifth of the amount realised by the defendants in execution of their decree against Daudasa will be payable to the plaintiff. The plaintiff will get his costs in all the Courts and will also get interest pendente lite until realisation of his decree.
19. Out of the total amount decreed, the defendants will be personally liable for Rs. 550/13/-with proportionate costs as decreed by the lower Court.
